Saturday, May 02, 2009

Policy Differences (by Phila)

Lately, the nation has been debating torture. Some people think it's a great idea, and other people think it isn't. This kind of polarizing argument is always disheartening. But in this case, it's also dangerous, because it might distract us from doing whatever's necessary to protect Western Civilization from the forces of barbarism.

Fortunately, we have thoughtful centrists like Will Marshall to keep us from becoming any better than we ought to be. Since he's not an extremist, he understands that we are not debating torture, but policy.

Are political activists losing their ability to distinguish between policy disputes and mistakes and criminal behavior? The distinction is crucial, and it has apparently has been lost on those who demand that the authors of the Bush administration's infamous torture memos be prosecuted for breaking the law.

You'll recall that this country once spent an enormous amount of money and time to investigate Bill Clinton's infidelity. But after all that effort and expense, Clinton wasn't actually removed from office. Which just goes to show that there's not much point in trying to punish the authors of the torture memos.

The activist group MoveOn, for example, is calling for the appointment of a special prosecutor. There's more than a little irony here. After all, MoveOn was born in reaction to a partisan attempt by Republicans to impeach Bill Clinton for his dalliance with a young White House intern. The effort foundered because most Americans could tell the difference between poor judgment and the "high crimes and misdemeanors" standard that impeachment requires.

They didn't want a special prosecutor for Clinton's grimy little affairs, but they do want one for Bush's systematic use of torture. How can they expect to be taken seriously?

Some people might find this reasoning specious, so Marshall proceeds to more weighty objections. First, there's the fact that if we go after members of the administration for embracing ritualized extralegal sadism and murder, there's a possibility that the GOP will seek revenge once they get back into power. If we don't, they'll probably be much easier to get along with (as long as we don't start agitating for anything that strikes them as "socialistic").

Second, there are no facts, only interpretations:

At a more basic level, those clamoring for "justice" overestimate the law's ability to provide policymakers with fixed and unambiguous guides to action.

Indeed. The situation is so ambiguous that "justice" must be presented in scare quotes, lest we mistake it for a desirable outcome of "due process" under the "law."

And what is the "law," anyway? Can you see it or taste it or hold it in your hand? By no means. It's some sort of...of...ongoing, abstract process. Worse, it's inherently adversarial, which is the last thing we need.

In fact, our laws are always open to varying interpretations - that's why we have a whole third branch of government to adjudicate among them.

If you're thinking that this third branch could adjudicate whether we're talking about policy differences or crimes when it comes to the torture memos, think again. Marshall has already pointed out that this would enrage torture-fanciers, who may decide to strike back. It's much better to stay on their good side by whitewashing their bad side.

Besides, aren't we all guilty, in a certain sense? And doesn't that make us all innocent, in a far more important sense? If everyone's guilty, why should any particular person, or group of people, be singled out for prosecution?

Now, some people will claim that the reason we should bring "torturers" to "justice" by "trying" them for their "crimes" is so that a) they won't do it again; b) other countries will see that we're making an honest effort to live by the principles in whose name we bomb and brutalize them; and c) future administrations might possibly think twice before committing crimes that are even worse than the ones we've heard about.

But Marshall doesn't see it like that. He's got a much better idea:

[T]he impulse to criminalize differences over policy and presidential prerogative is corrosive to democracy. More than legal accountability, we need political accountability. Elections are the best way to stop bad policies. When it comes to judging any administration's actions, there should be a strong presumption in favor of letting the voters decide, rather than the courts.

I've seen plenty of warped, incoherent, stupid, and morally obscene propositions over the last eight years, but this just about takes the cake. Not only are we expected to have an indulgent view of torture, but we should also restrain the judicial branch from deciding whether an administration is abiding by the law (which would presumably include reducing its already limited access to information). Rather than identifying and punishing torturers, and affirming that all our smug liberal-humanist boilerplate actually contains a tiny grain of sincerity, we should forego judicial oversight, and turn the really tough decisions over to an electorate that, if this plan went through, would be even less informed than it already is.

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